U.S. Court Strikes Down MARPOL And UNCLOS Defenses In OSG Prosecution

New Development

On June 30, 2008, the U.S. Court of Appeals for the Fifth

Circuit (the "Court") reversed a lower court's

dismissal of criminal charges against Kun Yun Jho

("Jho") and Overseas Shipholding Group, Inc.

("OSG"). Jho had served as the Chief Engineer of the

PACIFIC RUBY, an oil tanker owned by OSG. The lower court (the

U.S. District Court for the Eastern District of Texas) had

dismissed charges against Jho and OSG that alleged that Jho and

OSG had knowingly failed to maintain an oil record book aboard

the PACIFIC RUBY.

This case is significant for the international maritime

community primarily because of the Court's decision that

international law, specifically the United Nations Convention

on the Law of the Sea ("UNCLOS") and the "law of

the flag" doctrine, does not supersede the authority and

jurisdiction of the United States to prosecute pollutionrelated

incidents by foreign-flag vessels that occur outside of U.S.

waters if the foreign-flag vessels subsequently call on U.S.

ports and have maintained inaccurate oil record books.

Background

Jho served as the Chief Engineer on board the PACIFIC RUBY,

which is a foreign-flag (i.e., non-U.S.) tanker, that was

apparently engaged in lightering operations from off-shore

tankers to ports along the Gulf of Mexico. A whistleblower

onboard the vessel alerted the Coast Guard to allegedly

unlawful discharges from the vessel and also alleged that Jho

had tampered with the oily water separator system. In a

subsequent Coast Guard inspection, the Coast Guard claimed to

have discovered evidence corroborating the whistleblower's

allegations.

The U.S. Department of Justice brought charges against both

Jho and OSG in which it charged ten counts, specifically one

count of conspiracy, one count of making false statements to

the Coast Guard, and eight counts of knowing failure to

maintain an oil record book. These final eight counts related

to eight separate port calls in the United States at which the

PACIFIC RUBY allegedly entered U.S. ports with a knowingly

inaccurate oil record book.

Jho and OSG argued that international law prevented the

United States from prosecuting them for these alleged oil

record book violations. They claimed that the U.S. had no

authority to pursue a prosecution against "a foreign flag

ship for alleged violations of U.S. Coast Guard regulations

that occurred aboard ship and outside U.S.

waters."1

The Act to Prevent Pollution from Ships, 33 U.S.C. §

1901, et seq. ("APPS"), which is the MARPOL

implementing legislation in the United States, prohibits

violations of MARPOL, APPS and regulations promulgated under

APPS. The criminal charges against Jho and OSG stem from

alleged knowing violations of the oil record book requirements

under the APPS regulations. These requirements apply only to

foreign-flag vessels "while in the navigable waters of the

United States, or while at a port or terminal under the

jurisdiction of the United States."2 APPS also

states that any actions taken under APPS must be taken in

accordance with international laws.3

The lower court had dismissed the oil record book charges

against both Jho and OSG because it held that the U.S.

government was prohibited from prosecuting the oil record book

offenses in this matter as such a prosecution would...